In 2001, a couple purchased donor sperm from a sperm bank so that they could conceive a child. The sperm bank represented that it carefully screened all of its donors, to the point where it only accepted about 5% of potential donors. More to the point, the sperm bank told the couple here that the sample they purchased–identified as Donor #9623–was one of their “best” donors.
That turned out to be not quite true. In fact, Donor #9623 made a number of false and misleading statements during the screening process. For example, although he said he had no criminal history, he had multiple prior arrests for burglary, trespassing, and drunk driving. The donor also lied about his educational background.
Such omissions may not seem like a big deal, but the donor also failed to disclose that he had a history of mental illness, for which he required multiple hospitalizations. The couple who purchased the donor’s sperm only learned of this years later, after the child they conceived was born and had started to manifest symptoms of mental disorders himself. The child also has a genetic blood disorder that was not acquired from the mother.
Norman v. Xytex Corp.
In 2017, the couple sued the sperm bank and several other defendants. They presented a number of claims, most of which revolved around consumer fraud. The defendants moved to dismiss, however, alleging the plaintiffs’ lawsuit amounted to a wrongful birth claim, which is not recognized under Georgia law.
“Wrongful birth” typically refers to a scenario in which a parent claims they would have terminated a pregnancy had they known the unborn child would develop certain genetic disorders. The Georgia Supreme Court has long held such claims cannot be pursued as a matter of personal injury law because the justices were “unwilling to say that life, even life with severe impairments, may ever amount to a legal injury.”
That said, on September 28 of this year, the Supreme Court said the couple in this case could proceed with their case against the sperm bank to the extent such claims arise from their child’s “specific impairments caused or exacerbated by defendants’ alleged wrong. Consistent with its prior rulings, the Court reaffirmed that the parents could not seek damages over the “very existence of the child” himself.
In prior cases addressing allegations of wrongful birth (or wrongful conception), the Court noted that the parents were typically pursuing medical malpractice claims. But this case had nothing to do with malpractice. That is to say, the sperm bank played no role in the actual conception or prenatal care of the mother or child. Instead, it merely sold the donor sperm. As with any consumer product, the Court said the parents–i.e., the customers–could pursue legal claims based on the notion that they “may have paid more for Donor #9623’s sperm than it was really worth.”